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Levin & Zeiger, Philadelphia
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Part Four
The U.S. Supreme Court (SCOTUS) should review the conspiracy case aimed at Birmingham attorney Burt Newsome in order to declare that release and dismissal (R&D) agreements in criminal cases -- of the type present in the Newsome matter -- are unlawful when they foreclose all future civil liability for non-government actors, according to an amicus brief filed with the high court in support of Newsome's petition for certiorari.
Consejos de Latinos Unidos (CDLU), a non-profit, non-partisan national public charity based in Birmingham, filed the amicus brief on Newsome's behalf. The brief states that CDLU "has spurred three U.S. Congressional investigative
hearings and numerous federal, state, and local
probes. The CDLU fights unethical and unsavory
businesses, inept government agencies, and
corruption. CDLU educates the public about
miscarriages of justice when government breaches the
rule of law." Brian J. Zeiger, of the Philadelphia law firm Levin & Zeiger, prepared the amicus brief. (Full brief is embedded at the end of this post.) At the heart of Zeiger's argument are concerns about police misconduct, an issue right off the front pages of today's newspapers. But first, he notes that R&D agreements bastardize the role of a prosecutor in the American justice system. Writes Zeiger:
These (R&D) agreements offend core premises of basic
fairness because they serve no public prosecutorial
function, suppress valid civil claims against private
parties, and impermissibly make the prosecutor have
an interest in the outcome, in violation of both due
process and professional ethical obligations. This case
presents a good vehicle for this Court to condemn such
agreements and stop authorities in Shelby County
Alabama from exploiting this practice to the
detriment of CDLU’s constituents. Further, this
release dismissal order, was propped up to an unfiled
draft order to vacating an expungement order that
was never entered into the Alabama State Judicial Information System (SJIS) record.
A prosecutor holds a special position in our
system of justice. “The [prosecutor] is the
representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but
that justice shall be done.” Berger v. United States,
295 U.S. 78, 88 (1935).
Thus, this Court has required that matters only
be prosecuted by a “disinterested prosecutor.” Young
v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807
(1987). But when a prosecutor considers private interests, he is not disinterested. “The
Government’s interest is in dispassionate assessment
of the propriety of criminal charges” but a “private
party’s interest is in obtaining the benefits of the
court’s order.” When a prosecutor has
private interests as well, he “may be tempted to bring
a tenuously supported prosecution if such a course
promises financial or legal rewards for the private
client. Conversely, a prosecutor may be tempted to
abandon a meritorious prosecution if a settlement
providing benefits to the private client is conditioned
on a recommendation against criminal charges.”Id.
“In a case where a prosecutor represents an
interested party, the ethics of the legal profession
require that an interest other than the Government’s
be taken into account. Given this inherent conflict in
roles, there is no need to speculate whether the
prosecutor will be subject to extraneous influence.” Id. Thus, a proceeding is inconsistent with “basic
notion of fairness” if the prosecutor “represents an
interested person” to the proceeding. Id. And such
errors are structural, as it “is a fundamental premise
of our society that the state wield its formidable
criminal enforcement powers in a rigorously
disinterested fashion, for liberty itself may be at stake
in such matters.” Id. at 810.
SCOTUS, Zeiger notes, never has approved of the widespread use of R&D agreements. How does police misconduct enter the picture? Zeiger explains:
Courts have long viewed release-dismissal
practices with skepticism, if not outright hostility. For instance, in 1968 the D.C. Circuit ordered criminal
charges over which it had supervisory powers
dismissed in the D.C. Superior Court. See Dixon v.
D.C., 394 F.2d 966 (D.C. Cir. 1968). In a concurring
opinion, Chief Judge Bazelon explained that this
dismissal was justified in part because of the
prosecution’s abuse of a release-dismissal agreement,
and the “need to prevent” such agreements from being
used in future cases. See id. at 968. According to Chief Judge Bazelon:
"The major evil of these agreements is not
that charges are sometimes dropped
against people who probably should be
prosecuted. Much more important, these
agreements suppress complaints against
police misconduct which should be
thoroughly aired in a free society. And
they tempt the prosecutor to trump up
charges for use in bargaining for
suppression of the complaint. The
danger of concocted charges is
particularly great because complaints
against the police usually arise in
connection with arrests for extremely
vague offenses such as disorderly
conduct or resisting arrest
"Courts may not become the ‘enforcers’ of
these odious agreements. We must
therefore bar prosecutions which are
brought because the defendant refused
to promise or reneged on a promise not to
file a complaint against the police.
Prosecutors will then have no incentive
to offer or make such agreements."
Id. at 969-70.
Other courts held similar views. In a later
opinion, the Tenth Circuit described its 1984 case in
Lusby v. T.G. & Y. Stores, 749 F.2d 1423 (10th Cir.
1984) as having “excoriated” the use of “releasedismissal agreement.” Hammond v. Bales, 843 F.2d 1320, 1322 (10th Cir. 1988). In another case, the
Ninth Circuit strongly condemned such agreement,
saying:
"It is no part of the proper duty of a
prosecutor to use a criminal prosecution
to forestall a civil proceeding by the
defendant against policemen, even
where the civil case arises from the
events that are also the basis for the
criminal charge. We do not mean that
the prosecutor cannot present such a
criminal charge. What he cannot do is
condition a voluntary dismissal of a
charge upon a stipulation by the
defendant that is designed to forestall
the latter’s civil case. The situation is
made no better by the fact that here the
record indicates that it was the court
that asked [the criminal defendant] whether he would stipulate. Rather, it
makes it worse. It brings the court to the
aid of the prosecutor in coercing the defendant into agreeing to what
amounts to a forfeiture of his civil rights.
Nor can the prosecutor, because of
failure to obtain the demanded
stipulation, then introduce another
charge in the hope of defeating the
possible civil action of the defendant.
MacDonald v. Musick, 425 F.2d 373, 375 (9th Cir.
1970). Indeed, the Ninth Circuit described release-dismissal agreements as criminal 'extortion.'” Id. at 376.
In Town of Newton v. Rumery, 480
U.S. 386 (1987), a case discussed at length in Newsome's certiorari petition, SCOTUS did not endorse
release-dismissal agreements, but it did accept
that they could serve some limited public interest. Courts, in general, have continued to hold a dim view of R&D agreements. Writes Zeiger:
The Courts of Appeals have long demanded
strict compliance with Rumery’s factors. Release dismissal agreements are not “presumptively valid”—
quite the opposite. Coughlen v. Coots, 5 F.3d 970, 974
(6th Cir. 1993). Indeed, “these agreements should be
scrutinized closely in cases where substantial
evidence supports an allegation of police misconduct,
in view of the potential for abuse of release-dismissal
agreements by law enforcement officials.” Id. And, in
every case, the prosecution must have “an
independent, legitimate criminal justice objective” for
the agreement. Id. But “[t]he potential for abuse of
release-dismissal agreements has led the Supreme
Court to urge the use of a critical eye when courts are
asked to enforce them.” Gonzalez v. Kokot, 314 F.3d
311, 317 (7th Cir. 2002). . . .
Although this Court has allowed limited use of
release-dismissal agreements, individual jurisdictions
have raised greater concerns. For instance, New York
has adopted a very strong presumption against
release-dismissal agreements. In Cowles v. Brownell,
538 N.E.2d 325, 327 (1989), the court found that these
agreements were “no benefit, only a loss” to the
criminal justice system. If the charges were not
provable, the prosecutor had an ethical duty to
dismiss them without extracting the price of a civil
release. If the evidence was sufficient to gain a
conviction, as the prosecutor maintained, then the
dismissal of charges was contrary to the public
interest in seeing a wrongdoer punished. Thus the
release-dismissal agreement before the Court
undermined “the legitimate interests of the criminal
justice system solely to protect against civil liability;
it surely does not foster public confidence that the
justice system operates evenhandedly.” Id.
Release-dismissal agreements are also
unethical. As one commentator put it, “the ethics rules
… prohibit a prosecutor from entering into a release-dismissal agreement,” because “there is a risk that is
significant” “that the prosecutor will not pursue the
government’s interest in the criminal matter due to the civil interests of the police and municipality.”
Peter A. Joy, Kevin C. McMunigal, Police Misconduct
and Release-Dismissal Agreements, Crim. Just. 31, at
33-34 (Fall 2018). Further, “a prosecutor violates [his]
duty whenever the prosecutor conditions the
dismissal of criminal charges that lack merit on a
release of civil claims.” Id. at 34-35.
R&D agreements become particularly troubling when they are used to protect private parties from civil liability -- as was the case in the Newsome matter. From the CDLU brief:
The use of release-dismissal agreements to
relieve private parties of all potential civil liability,
even those who are not identified in the agreement
cannot be justified. Rumery allowed certain types of
agreements in highly circumscribed situations. It did
so somewhat reluctantly. This Court never espoused
what has now become widespread practice in
Alabama, and what is now presented by Mr.
Newsome’s petition. Indeed, all of the concerns
expressed by this Court in Rumery make it plain that
the types of agreements involved in Mr. Newsome’s
petition offend basic notions of fairness and should not
be allowed.
This Court presumes that civil lawsuits,
particularly those alleging public corruption or
misconduct should be filed and grievance should be
aired. See Rumery, 480 U.S. at 395-96 (Powell, J.,
plurality op.). And this Court was willing to let
release-dismissal agreements to interfere with that
presumption, but only to “protect public officials”
because some such lawsuits are meritless and
defending them is to “the detriment of the[
defendants] public duties,” which “is distinctly not in
the public interest.” See id. (emphasis added). That
rationale, of course, has no bearing whatsoever on
lawsuits involving private litigants. Private litigants
serve no public function, they have no public duties, and our civil justice system presumes that lawsuits
are the way to determine whether private actors have
harmed one another. Release-dismissal agreements
for unidentified private parties undermines our civil
justice system—it hardly serves public needs.
The CDLU amicus brief points a glaring finger at dubious practices in the Shelby County Courthouse. Here's how Zeiger presents that issue to SCOTUS:
This Court should be deeply disturbed by the
prospect of any release-dismissal agreements that
attempt to waive civil liability for unidentified private
parties. That alone offends due process and the
premise of fundamental fairness. But this case
presents a compelling story of a blanket and deeply
unethical form of release agreement, coupled with
procedural irregularities that suggest an even greater
concern about the actions of the prosecution. As recounted by Mr. Newsome’s petition, John
Bullock, a private citizen, filed the menacing criminal
complaint against Mr. Newsome. But
Bullock, in conjunction with the prosecutor, agreed to
drop the charge. The prosecution,
however, insisted on a blanket release-dismissal
agreement on a standard form that was apparently
used widely in the jurisdiction, and contained checkboxes for use in different cases. This
release did not have any specific consideration for the
facts of Mr. Newsome’s case, or articulate unique reasons why a release-dismissal agreement served the
public prosecutorial interest. It was
completely silent on why such an agreement was
permissible, much less necessary to serve the ends of
public justice. The form contained a
release of all of Mr. Newsome’s civil and criminal
claims against countless governmental entities as
well as nongovernmental entities, complainants and
potential witnesses.
Thus when Mr. Newsome filed a civil action
against Clark A. Cooper, his former law firm Balch &
Bingham, LLP, Mr. Bullock and Claiborne Seier, the
full reach of the release-dismissal agreement became
clear. Only Mr. Bullock had any direct involvement
with the menacing charge. And Mr. Seier, Mr. Cooper
and the law firm had nothing at all to do with the
menacing complaint itself, and the allegations made
by Mr. Newsome seem only to relate to behind-the-scenes efforts by those other defendants to either gin
up a reason for malicious charges or exploit the
charges once filed. Yet they were ultimately deemed
to be covered by the release, and the broader lawsuit
was dismissed in light of the agreement.
This Court should be deeply troubled by Shelby
County’s apparently systematic practice of requiring
the release of any and all possible claims from anyone,
so long as any tenuous relation to the criminal charges
can be imagined at a later date. What public interest
could such a release possibly serve? Perhaps more
significantly, what motives could elected prosecutors
have to utilize such agreements? As discussed above—
the answers are already clear. A prosecutor cannot be
independent when pushing for an agreement that
benefits private actors with little relationship to the
charges at issue. See Young, 481 U.S. at 807; Rumery,
480 U.S. at 401-02 (O’Connor, J., concurring). And the
temptation for impropriety is too great for this Court to tolerate.
Is that the only dubious Shelby County activity spotlighted in the CDLU brief? Absolutely not. Writes Zeiger:
Even that is not the end of the problem
presented in this case. After Mr. Newsome filed a
lawsuit alleging corruption and a conspiracy to falsely
charge him with a crime, and, even more telling,
alleging that the release-dismissal agreement “was
obtained through fraudulent representations and a
conspiracy”, the civil defendants appeared
to work in tandem with the court to make sure this
troubling release-dismissal agreement remained in
effect. Mr. Newsome ultimately expunged his
conviction and with it the release-dismissal
agreement. And based on that expunction, the
court overseeing his civil lawsuit vacated its prior
dismissal of the lawsuit based on the release. But the defendants became involved in the
expungement case, despite likely having no standing
to do so, and presented the trial court with a draft
order vacating the expungement. The order,
however, was never entered into the State Judicial
Information System and did not have any legal effect. Yet with concerted action by the defendants,
and a long run of litigation in the state courts, the
Supreme Court of Alabama ordered the draft order
entered, notwithstanding the troubling circumstances surrounding its origin, but yet the order was never
entered. This drew two dissenting opinions
from the Court. Indeed, as one of the
dissenting justices explained, the relevant order was
never entered into the Alabama State Judicial
Information System, and therefore the Alabama
appellate courts never had any jurisdiction to take
action, much less direct the reinstatement of the release-dismissal agreement.
Whatever ultimately happened, or the legality of the
on-again off-again expungement order, the Rumery
Court warned others to be on the lookout for precisely
this type of potential “prosecutorial misconduct.
This case presents much more than just a legal
technicality over the scope of release-dismissal
agreements. It goes to the basic fairness of common
practice in Shelby County Alabama. It potentially
affects every one of CDLU’s constituents. This Court
should therefore grant the writ.
Previously . . .
* Part One: Birmingham lawyer Burt Newsome seeks U.S. Supreme Court review in case involving allegations of a plot to frame him for a crime and ruin his practice
* Part Two: Lawyer Burt Newsome
asks SCOTUS to untangle Alabama courts' messy handling of case alleging
he was framed for a crime in plot to ruin his practice
* Part Three: Alabama courts trampled Burt Newsome's due-process rights -- the kind of
errors that happen around the country and require U.S. Supreme Court
interventio
